Jury: Behavioral Aspects

The modern American jury is far more heterogeneous and representative of the citizenry at large than was the early English jury or even the American jury in the early twentieth century. Nonetheless, the jury is not a random sample of citizens. It is the product of a multi-stage selection process that typically begins with a list of potentially eligible jurors drawn from voter registration lists and often supplemented by lists of individuals holding drivers' licenses in the general geographic area where the court sits. Prospective jurors may be excused from jury service on the basis of hardship, but losses also arise as a result of geographic mobility, a failure to update the lists, and nonresponse by prospective jurors to a court summons. The loss of prospective jurors in the qualification and summons process results in a systematic underrepresentation of minorities, younger individuals, and those at lower income levels.

The final stage in jury selection occurs when prospective jurors are brought into the courtroom and questioned to determine whether they will serve in the particular case. Those who clearly express preconceived notions about what the verdict in the case should be, and those with clear conflicts of interest, are excused by the judge (the challenge for cause). In addition, the parties can excuse a limited number of prospective jurors without giving a reason (the peremptory challenge). The U.S. Supreme Court has ruled—Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)—that peremptory challenges based on race or gender are constitutionally prohibited, but that prohibition fails to eliminate racially and gender motivated challenges because courts generally require the party making the challenge to provide only minimal justification when the opposing party charges that a challenge was improperly motivated. Also, given the small number of jurors challenged in the typical trial, an attorney can generally identify a unique and nondiscriminatory reason for each challenge.

The result of this variety of shaping and sometimes cross-cutting forces is that juries tend to be somewhat more educated, wealthier and older, and less likely to include a representative number of minorities, as compared to the distribution of these groups in the adult population. Although these differences are likely to persist, the American jury today is more representative than ever before, and is more heterogeneous than the juries of other countries with a jury system. Moreover, jury participation is extensive. Surveys indicate that 25 percent of American citizens are likely to serve on a jury trial at some point in their lives.